Deal would imperil phone unlocking

The White House has drawn a sharp rebuke from technology advocates over the leaked intellectual property section of a massive Pacific trade deal, which they say backpedals from the Obama administration’s promotion of legally unlocking mobile phones and could keep the devices locked to specific carriers indefinitely.

The Trans-Pacific Partnership chapter, published online Nov. 13 by WikiLeaks, shows U.S. trade officials are pushing for tight controls that could deny consumers the right to digitally unlock their mobile devices once their service contracts expire. Only limited exceptions to copyright safeguards would be allowed, mirroring language in a 1998 law stemming from a pair of World Intellectual Property Organization pacts, and mobile phones were not on the list.

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What worries tech groups and experts in the field is that once such protections are ratified in a treaty and codified in U.S. law, they become exceedingly difficult to change.

“As a practical matter, it becomes so much more difficult because you would need to change the agreement,” said Jonathan Band, a copyright lawyer who helped write some of the initial exceptions in U.S. law. “Obviously, it’s better not to go there in the first place and not have this level of specificity.”

Carol Guthrie, spokeswoman for the Office of the U.S. Trade Representative, downplayed the technology advocates’ concerns.

“While negotiations are ongoing, our position categorically does not run counter to our administration’s stance on phone unlocking, nor would the measure we are pursuing in TPP negotiations foreclose other TPP partners’ efforts along similar lines,” Guthrie said.

The U.S. proposal in the leaked TPP text would allow seven reasons for flouting the copyright protections, known as “anti-circumvention” provisions in trade lingo, which apply to materials such as digital music, movies and software as well as mobile phones. For example, software engineers could alter computer programs to make them compatible with others, or public libraries could archive copyrighted content.

“There’s an argument that if you’re unlocking your phone, you’re violating the anti-circumvention provisions” of the agreement, said Sherwin Siy, vice president of legal affairs for Public Knowledge, a consumer technology organization.

Critics of the deal, such as Siy, are puzzling over why President Barack Obama’s administration would want to hem in U.S. law on this issue, given the White House’s calls for exempting phone unlocking from penalties in the 1998 law, dubbed the Digital Millennium Copyright Act, and has even taken initial steps on a comprehensive overhaul of U.S. copyright law.

“It’s interesting that more general proposals for anti-circumvention are being opposed by the U.S.,” Siy said.

In January, the administration called legalizing unlocked, or “jailbroken,” mobile phones a “common-sense” move to free up the phone service marketplace. The White House even supported a petition on the issue.

“The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cellphones without risking criminal or other penalties,” R. David Edelman, the senior Internet, innovation and privacy adviser for the White House, said in a March statement. “In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smartphones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.”

The petition criticized the Library of Congress for declining to renew a temporary mobile phone exemption to the 1998 law in October 2012, which it did on the advice of its U.S. Copyright Office after a yearlong review of the temporary exemption. The Copyright Office argued that the exemption was no longer necessary because fewer mobile devices made today come locked.

In its response, the Library of Congress said it agreed with the administration that the question of locked cellphones has implications for telecommunications policy and “would benefit from review and resolution.”